MADHU GARG Vs. NORTH DELHI POWER LTD

JUDGEMENT

(1.) The question to be determined in these Petitions is whether the respondents are empowered to insist upon the clearance of arrears on account of electricity supplied to premises which have come to be occupied and/or owned by a different consumer.

(2.) The conundrum before the Supreme Court Bench presided over by P.B. Sawant, S. Mohan and K.S. Paripoornan, JJ. in Isha Marbles v. Bihar State Electricity Board, (1995) 2 SCC 648, was whether an auction-purchaser under Section 29(1) of the State Financial Corporation Act, 1951 can be fastened with the liability of the erstwhile consumer of electricity to the said premises. The petitioners, apart from one, were found by the Court to be bonafide purchasers under a statutory sale. The inter-connection between Section 22 of the Indian Electricity Act, 1910 (Electricity Act for short) and Section 26 of the Electricity (Supply) Act, 1948 (Supply Act for short) had been considered in detail. Reference to the definitions of consumer and occupier were made, as also Section 22, dealing with the obligation of the licensee to supply energy. Clause VI of Schedule to the Electricity Act was duly noted. It was observed that Section 24 of the Electricity Act relieves the Licensee of its obligation under Section 22 to supply energy if the consumer has not paid the charges for electricity already supplied. The Apex Court noted that after service of the prescribed notice electricity supply could be cut-off by resorting to Section 24; but this action was in addition to the general remedy of filing a recovery suit. So far as the said civil remedy is concerned it may be relevant to immediately refer to the decision dated May 6, 1977 of this Court in CW No. 1331 of 1976 titled as Palam Potteries v. Delhi Electricity Supply Undertaking, wherein it had been observed that an amount claimed as arrears cannot be assumed to be due until it is adjudicated upon, on the analogy of the ratio of Union of India v. Raman Iron Foundry, AIR 1974 SC 1265. It appears to me that wherever a genuine dispute arises as to the arrears or quantum of electricity consumed by a consumer the salutary principle for the Court to follow would be to direct a proper adjudication thereof, with a direction nonetheless to deposit whatever appears to be the admitted or uncontestable sum. Returning now to Isha Marbles, the Supreme Court reproduced a part of the High Court judgment which may be summarized as being "consumer-centric" in contra-distinction to "premises-centric", if I may be permitted to coin these terms. It had opined that "it is clear that the High Court has chosen to construe Section 24 of the Electricity Act correctly. There is no charge over the property. Where that premises comes to be owned or occupied by the auction-purchaser, when such purchaser seeks supply of electric energy he cannot be called upon to clear the past arrears as a condition precedent to supply. What matters is the contract entered into by the erstwhile consumer with the Board. The Board cannot seek the enforcement of contractual liability against the third party. Of course, the bona fides of the sale may not be relevant." The legal position was thereafter enunciated in these words:

(3.) The ratio in Isha Marbles case was reflected upon in Ahmedabad Electricity Co. Ltd. v. Gujarat Inns Pvt. Ltd., II (2004) SLT 814=(2004) 3 SCC 587 by a Bench presided over by R.C. Lahoti, J., (as the learned Chief Justice of India then was), Brijesh Kumar and Arun Kumar, JJ. The petitioners were auctionpurchasers of urban property and had applied for fresh connections for supply of power to their respective premises. On behalf of the electricity licensees it was contended that Isha Marbles does not lay down the correct law and needs fresh consideration on the grounds that it is essential to distinguish between reconnections and fresh connections. In paragraphs 49 and 57 of Isha Marbles, there is a brief discussion of these two terms. All that the Supreme Court observed in Ahmedabad Electricity Co. was that where electric supply has already been made to a building, but the supply has been discontinued for any reason including that of pending arrears, re-activating the supply would not constitute a fresh connection. What is of great importance is that the Court opined that "in case of a fresh connection though the premises are the same, the auction-purchasers cannot be held liable to clear the arrears incurred by the previous owners in respect of power supply to the premises in the absence of there being a specific statutory provision in that regard." Therefore, there has been nc change in the legal opinion of the Apex Court even during the passage of one decade and cogitation upon this legal nodus by six learned Judges of the Highest Court of the land. Has the statutory matrix been altered to such an extent as to render this enunciation of the law a jural anachronism, is the question which has to be answered.